Andhra HC (Pre-Telangana)
Sarada Bai And Others vs Smt. Shakuntala Bai And Another on 16 June, 1992
Equivalent citations: AIR1993AP20, 1992(2)ALT660, AIR 1993 ANDHRA PRADESH 20, (1992) 2 ANDH LT 660
ORDER
1. This Civil Revision Petition is filed under Art. 227 of the Constitution of India for declaring the order dated 6-12-1989 made in E.P. No. 3 of 1988 in O.S. No. 1932 of 1985 and the consequential order dated 7-3-1990 made in E.A. No. 23 of 1990 in E.P. No. 3 of 1988 by the IInd Assistant Judge, City Civil Court at Hyderabad regularising the unauthorised constructions in respect of the premises bearing Municipal No. 21-2-142/1 to 4 situated at Charkaman in Hyderabad city, as illegal and unjust and for setting aside the said orders, etc.
2. The affidavit in support of this Civil Revision Petition is filed by the 1st petitioner. She states that she is the absolute owner of the premises bearing Municipal No. 21-2-131/7 to 9 situated at Charkaman in Hyderabad and that the said premises are siutated opposite to the premises bearing Municipal No. 21-2-142/1 to 4 on the other side of the road. The 2nd petitioner is the husband of the 1st petitioner and the 3rd petitioner is a tenant of the premises bearing Municipal No. 21-2-131/7 to 9 of the 1st petitioner. The 1st petitioner states that the premises bearing Municipal No. 21-2-142/1 to 4 were purchased by the 1st respondent herein under a registered sale deed dated 10-1-1984. According to her the plan attached to the said sale deed will show that portions of public road on the western and northern sides are included as part of the said premises purchased by the 1st respondent. The said premises of the 1st respondent are in the commercial use zone. The 1st repsondent applied to the Government of Andhra Pradesh for relaxation of the zoning regulations of 1981 applicable to the said building for constructing a first floor. The Government of Andhra Pradesh in G.O. (Rt.) No. 1835, Housing, Municipal Administration and Urban Development Department dated 29-10-1984 passed the following order:--
"Under Regularisation 12 of the Zoning Regulations 1981, the Govt. hereby relax the provisions of Regulations 9-2-1, 10 & 6-1-2 of the said regularisations to the extent indicated below in favour of Smt. Shakimtala for change of roof of the ground floor and construction of first floor in P. No. 21-2-142/1-4 at Qulzar House:--
Z.R. 9-2-1 (i)-- To the full extent of 10'-00" towards Nothern and Western sides for ground and first floor.
(ii) To the full extent of 10'-00" towards Eastern side for ground and first floor.
(iii) To the full extent of 5'-0" towards Southern side,
10. Coverage -- To the full extent.
6-1-2 -- To allow residential building in Commercial use zone.
2. The relaxation ordered in para (1) above is subject to the following conditions :--
(a) The petitioner should not project balconies towards Western and Northern sides.
(b) The petitioner should not disturb the privacy of the neighbours on Eastern and Southern sides by way of opening of ventilations or windows and should produce 'No Objection Certificate' from them.
(c) The petitioner should not propose further vertical expansion at any time in future.
3. The Special Officer, Municipal Corporation of Hyderabad is requested to take necessary action accordingly and issue a building permit to the petitioner."
Pursuant to the said order of the Government of Andhra Pradesh, the 2nd respondent i.e., the Municipal Corporation of Hyderabad gave building permit No. 61/51 and the 1st respondent constructed the first floor. As tbe 1st respondent was making further constructions, the Municipal Corporation of Hyderabad issued notices to the 1 st respondent under Sections 452, 461 and ultimately under Section 636 of the Hyderabad Municipal Corporation Act, 1955 (hereinafter referred to as 'the Act') objecting to the further construction being made by the 1st respondent on the ground that the 1st respondent was raising R.C. columns on the second floor unauthorisedly, and requiring her to remove the same. Thereupon, the 1 st respondent filed Civil Suit O.S. No. 56 of 1985 before the Vacation Judge, City Civil Court, Hyderabad against Municipal Corporation of Hyderabad as sole defendant questioning the said notices and the Vacation Judge directed status quo to be maintained by his order in LA. No. 474 of 1985 dated 20-5-1985. The said suit was subsequently transferred to the file of the IInd Assistant Judge, City Civil Court, Hyderabad and was numbered as O.S. No. 1932 of 1985 and the interim direction to maintain status quo continued. Subsequently the said suit was referred to Lok Adalat and was numbered as Lok Adalat Case No. 542 of 1986 and was settled. In terms of the said settlement, the said suit was decreed on 24-2-1986 in the following terms:--
"1. That the plaintiffs shall apply to the defendant Municipal Corporation of Hyderabad within three months from the date of decree for regularisation of the suit constructions by levying compounding fee with requisite number of plans showing the unauthorised constructions/deviations and thereupon the defendant Municipal Corporation of Hyderabad shall regularise the construction by compounding the offence within three months from the date of submission of plans.
2. That the plaintiff shall pay the com-pounding fee, permit fee, property tax arrears up to date and also betterment charges, if not already paid, within the time fixed by the Municipal Corporation of Hyderabad. This compounding shall be without prejudice to third party's right including the Municipal properties and the scheme of road widening,
3. That the plaintiff shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad.
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6. These terms of this decree shall be executable."
It is the case of the petitioners that contrary to the said G.O. Rt. No. 1835 dated 29-10-1984 and contrary to the said decree dated 24-2-1986 in O.S. No. 1932 of 1985, the 1st respondent proceeded with the construction of the second floor and filed E.P. No. 57 of 1986 in the said suit for regularisation of all unauthorised constructions including the second floor. The IInd Assistant Judge, City Civil Court, Hyderabad dismissed the said E.P; by order dated 5-10-1987 holding that the 1st respondent was not entitled for the execution of the said decree in view of the unauthorised constructions including that of the second floor and conversion of the use of the premises from domestic to commercial, and also on the ground that she had not paid the property tax arrears up to date. However, the 1st respondent filed another E.P. No. 3 of 1988 for the execution of the said decree dated 24-2-1986 and the same was allowed by the Ilnd Assistant Judge, City Civil Court on 6-12-1989. Thereafter, the 1st respondent herein filed a Memo before the IInd Assistant Judge, City Civil Court, Hyderabad on 15-2-1990 to regularise all the constructions made by her and by order dated 21-2-1990 the 1st respondent was directed to deposit Rs. 1,000/- into Court towards compounding fees and the same was paid by her on 21-2-1990. Then the 1st respondent filed E.A. No. 23 of 1990 before the IInd Assistant Judge, City Civil Court for regularisation of the plan submitted and returning the same. The said E.A. No. 23 of 1990 was ordered on 7-3-1990 regularising the constructions as shown in the plan filed by the 1st respondent. It is the case of the petitioner, that the Court of the IInd Assistant Judge, City Civil Court thus regularised all the unauthorised constructions including that of the second floor by the 1st respondent.
3. The petitioner states that after the 1st respondent filed the said O.S. No. 1932 of 1985, the 2nd and 3rd petitioners herein along with one Dr. Lalita Pershad filed O.S. No. 2333 of 1985 before the Vth Assistant Judge, City Civil Court, Hyderabad alleging that the 1st respondent herein was making constructions in a portion of the public passage on the North and East taking advantage of the plan attached to the sale deed dated 10-1-1984 under which she purchased the said premises bearing Municipal No. 21-2-142/1 to 4 which authorisedly including portions of public road on the Western and Northern sides as part of the premises, and sought for a declaration that the said passages were public roads and that the 1 st respondent herein was not entitled to obstruct the said passages, and for removal of the pials and other structures, and also for a direction to her not to convert the said premises for commercial purpose. The said suit is still pending. The petitioners state that the three plaintiffs in the said O.S. No. 2333 of 1985 i.e. Dr. Lalita Pershad and petitioners 2 and 3 herein, filed I.A. No. 340 of 1985 in O.S. No. 1932 of 1985 to implead themselves as defendants in the said suit filed by the 1st respondent. It is the case of the petitioners that even while the said I.A. was pending, without any notice to the petitioners in the said I.A., the said suit O.S. No. 1932 of 1985 was referred to the Lok Adalat and was settled and decreed in terms of the settlement on 24-2-1986 and that they were not aware of the said decree. They are also not aware of the dismissal of E.P. No. 57 of 1986 of the 1st respondent by the IInd Assistant Judge, City Civil Court on 5-10-1987. The 1st petitioner herein and the said Dr. Lalita Pershad also filed O.S. No. 979 of 1987 on the file of the IInd Assistant Judge, City Civil Court, Hyderabad against the 1st respondent herein and the Commissioner, Municipal Corporation of Hyderabad for a declaration that the 1st respondent herein was not entitled to make constructions contrary to the said G.O. Rt. No. 1835 dated 29-10-1984 or permit No.61/51 dated 28-11-1984 granted by the 2nd respondent herein in favour of the 1st respondent herein for the constructions to be made by the 1st respondent in the said premises. The said suit is also pending. The plaintiffs in O.S. No. 2333 of 1985 also filed I.A. No. 91 of 1991 in the said suit for a direction to restrain the 1st respondent herein, from using her premises in question for commercial purposes. The 1st respondent, after initially filing a counter affidavit in opposition to the said application, also filed an additional affidavit on 2-5-1991 stating that all the constructions made by her including those on the second floor were regularised by the said order dated 6-12-1989 in E.P. No. 3 of 1988. According to the petitioners, they became aware of the said order in E.P. No. 3 of 1988 only after the said additional affidavit was filed by the 1st respondent herein.
4. The petitioners further state that the 2nd respondent herein issued notice dated 8-7-1988 to the 1st respondent herein stating that it refused permission for the construction of the second floor in the said premises of the 1st respondent and directing her to stop the construction of the second floor forthwith and another notice dated 14-7-1988 to her under Section 636 of the Act for removal of the unauthorised structures on the second floor. The 1st respondent herein filed suits O.S. No. 2685 of 1988 and O.S. No. 2758 of 1988 on the file of the IInd Assistant Judge, City Civil Court against the 2nd respondent herein questioning the said notices respectively and obtained status quo orders pending the said suits and the said suits are still pending.
5. The petitioners contend that the executing Court had no jurisdiction to regularise the unauthorised constructions made by the 1st respondent contrary to G.C. Rt. No. 1835 dated 29-10-1984 and contrary to the decree dated 24-2-1986 in O.S. No. 1932 of 1985. They also contend that the impugned order dated 6-12-1989 in E.P. No/3 of 1988 should not have been made in the teeth of the order dated 5-10-1987 made by the same Court in E.P. No. 57 of 1986 wherein it held that the 1st respondent was not entitled for regularisation as she violated the decree by constructing the second floor and by converting the use of the premises from domestic to commercial purposes. The petitioners further contend that the executing Court cannot pass orders fixing the compounding fees which is the function of the 2nd respondent herein i.e., the Municipal Corporation of Hyderabad.
6. In the counter affidavit filed on behalf of the 2nd respondent herein by the Town Planner, Municipal Corporation of Hyderabad, Circle No. 2, it is stated that the 1st respondent purchased the said premises' bearing House No. 21-2-142/1 to 4 from her sister Smt. Suraji Bai under registered sale deed dated 10-1-1984 and that the said Suraji Bai purchased the said premises from one Liaquatinnisa Begum under registered sale deed dated 14-4-1976. The plan of the said premises attached to the sale deed dated 10-1- 1984 is at variance with the plan attached to the sale deed dated 14-4-1976 and the former plan included portions of public road on the Western and Northern sides of the said premises as part of the said premises which are therefore encroachments. It is also stated that subsequent to G.O. Rt. No. 1835, M.A., dated 29-10-1984 referred to earlier where-under the Government of Andhra Pradesh granted relaxation, the 2nd respondent released the permission under Permit No.61/51 dated 28-11-1984 to the 1st respondent. On behalf of the 2nd respondent, it is also stated that the 1 st respondent started construction in the said premises a building for commercial purposes even though the relaxation given in the said G.O.Rt. was only for residential purposes. It is also stated that. the 2nd respondent issued notice to the 1st respondent under Section 452 of the Act dated 9-5-1985 stating that the R.C.C. columns were raised by the 1st respondent on the second floor without permission and therefore were unauthorised constructions and contrary to the sanctioned plan and that the 1st respondent gave a reply dated 10-9- 1985 stating that she was not intending to construct the second floor and that she had already given an undertaking dated 26-11-1984 to that effect to the 2nd respondent. Not satisfied with the said reply, the 2nd respondent issued final notice under Section 636 of the Act to the 1st respondent directing her to remove the unauthorised erection of the columns on the second floor and that thereafter the 1 st respondent filed the said O.S. No. 56 of 1985 before the Vacation Court at Hyderabad which was subsequently numbered as O.S. No. 1932 of 1985 on the file of the IInd Assistant Judge, City Civil Court, Hyderabad. It is also stated that even after the decree dated 24-2-1986 in the said O.S. No. 1932 of 1985, the 2nd respondent proceeded with the construction of the second floor and filed E.P. No. 57 of 1986 for regularisation of all unauthorised constructions including the second floor which was dismissed on 5-10-1987. Prior to that the 1st respondent submitted to the 2nd respondent on 24-4-1986 the building plan along with a copy of the said decree dated 24-2-1986 in O.S. No. 1932 of 1985 duly showing the proposals of columns raised up to 9' height and parapet walls. However, later on 29-3-1988, the 1st respondent submitted a building application to the 2nd respondent with separate plan including second floor and remitted the building permit fees etc., for the second floor on 5-4-1988. The 2nd respondent refused the same by its letter No. 142/1/2/21/1988 dated 12-4-1988 which was received by the 1st respondent's husband on 28-4-1988. Thereafter on 8-7-1988 the 2nd respondent directed the 1st respondent to remove the unauthorised constructions immediately, followed by notices under Section 452 of the Act dated 11-7-1988 and under Section 636 of the Act dated 14-7-1988. The 1st respondent filed suits O.S. No. 2685 of 1988 and O.S. No. 2758 of 1988 on the file of the IInd Assistant Judge, City Civil Court, Hyderabad and obtained status quo orders in respect of the said notices. It is also stated in the counter affidavit on behalf of the 2nd respondent that after the order in E.P. No. 3 of 1988 dated 6-12-1989, the 1st respondent did not submit the plans for regularisation but directly approached the Ilnd Assistant Judge, City Civil Court for regularisation of the deviations and unauthorised constructions. The 2nd respondent contends that the said order of the IInd Assistant Judge, City Civil Court, Hyderabad in E.P. No. 3 of 1988 dated 6-12-1989 is contrary to the order in E.P. No. 57 of 1986 dated 5-10-1987 and that the IInd Assistant Judge, City Civil Court has no jurisdiction to fix the compounding fees and to regularise the deviations and unauthorised constructions made by the 1st respondent herein. On behalf of the 2nd respondent, it is also stated that the 1st respondent also proceeded unauthorisedly with the construction of the third floor in the said premises without any permission whatsoever.
7. The 1st respondent herein denies in her counter affidavit that the premises allegedly owned by the 1st petitioner bearing No. 21-2-131/7 to 9 is opposite to her premises bearing No. 21-2-142/1 to 4 and states that the said premises of the 1st petitioner is at some distance from her property. As regards the allegation that the plan of her premises attached to the sale deed dated 10-1-1984 includes portion of public road on the Western and Northern side of the property, the 1st respondent states that the said allegation is "totally misconceived" and as such denied. She states that after the purchase of the said premises, she applied to the 2nd respondent on 20-1-1984 for construction of a double storeyed building and that after G.O.Rt. No. 1835, M.A. dated 29-10-1984 was issued by the Government of Andhra Pradesh and the 2nd respondent approved the plans under permit No. 61/51 of 1984, she had undertaken construction. She states that she did not erect any pillars with an intention to construct the second floor and therefore she questioned the notice dated 16-5-1985 issued by the 2nd respondent under Section 636 of the Act by filing the said suit O.S. No. 1932 of 1985. She denies that there is any construction on the public passage on the lane on the Northern and Eastern sides of her premises as alleged by the petitioners. She states that she complied with the obligations cast upon her under the decree dated 24-2-1986 in O.S. No. 1932 of 1985. According to her, she applied for construction of the second floor on the existing ground floor and first floor on 5-4-1988 and also informed the 2nd respondent on 2-5-1988 that in the event no communication was received by her, she would commence the construction. She states that subsequently she also wrote a letter to the 2nd respondent intimating commencement of the construction as provided under Section 437 of the Act. She states that E.P. No. 57 of 1986 was dismissed on 5-10-1987 "on the ground of non-payment of taxes upto date" and that she moved the second E.P. No. 3 of 1988 on 1-2-1988 after paying all the taxes and complying with the formalities. Accord-fulfilling all the formalities only she applied for construction of the second floor on 5-4-1988 i.e., after she filed E.P. No. 3 of 1988. She states : "as such, the allegation of the petitioner No. 1 that I have proceeded with the construction of the second floor and filed E.P. No. 57 of 1986 for regularisation of unauthorised construction, is totally false and the same is denied". According to her, the contention of the 1st petitioner that neither herself nor Dr. Lalita Pershad were aware till 1991 of the orders of the Lok Adalat and of the decree in O.S. No. 1932 of 1985 dated 24-2-1986 and of the orders of the IInd Assistant Judge, City Civil Court, Hyderabad in E.P. No. 57 of 1986 dated 5-10-1987 and in E.P. No. 3 of 1988 dated 6-12-1989, is not true in as much as the 1st petitioner moved I.A. No. 190 of 1988 in O.S. No. 979 of 1987 on 7-3-1988 for disposing of E.P. No. 3 of 1988 along with O.S. No. 979 of 1987 and the affidavit of the 1 st petitioner in support of the said I.A. No. 190 of 1988 clearly discloses her knowledge about all the proceedings in O.S. No. 1932 of 1985. On that basis, the 1st respondent submits that the petitioners were all the time aware of the order of the Ilnd Assistant Judge, City Civil Court, Hyderabad in E.P. No. 3 of 1988. She also contends that the said order dated 6-12-1989 in E.P. No. 3 of 1988 is not "erroneous or otherwise outside the purview of the decree in O.S. No. 1932 of 1985 and that the petitioners are neither entitled to question the said execution of the decree nor have they any interest, proprietory or otherwise, to question the same". She also submits that all the proceedings including that of the execution in the said O.S. No. 1932 of 1985 and the various orders passed from time to time in the said suit had become final and absolute as no steps were taken by the 2nd respondent challenging the same, and that therefore it is not open for the petitioners to challenge the same by way of the present Civil Revision'Petition. She further submits that pursuant to the orders in E.P. No. 3 of 1988 she submitted building plans for regularisation and approval and also filed E. A. No. 23 of 1990 and that the said building plans were returned by the Ilnd Assistant Judge, City Civil Court after regularisation and approval.
The 1st respondent also contends that the present Civil Revision Petition filed under Art. 227 of the Constitution of India is not maintainable in law since the impugned orders do not suffer from want of jurisdiction or excess of jurisdiction.
8. The learned counsel for the 1st respondent questions the locus standi of the petitioners to file the present Civil Revision Petition and submits that they cannot invoke Art. 227 of the Constitution for setting aside the impuned orders dated 6-12-1989 and 7-3-1990. He submits that they are not parties to the suit O.S. No. 1932 of 1985 or to E.P. No. 3 of 1988 and that they are not in any way affected by the impugned orders and therefore cannot question the impugned orders under Art. 227 of the Constitution. I do not agree. Whether the house of the 1st petitioner bearing No. 21-2-131/7 to 9 is opposite to the suit premises of the 1st respondent bearing No. 21-2-142/1 to 4 or not, it cannot be disputed that the petitioners are neighbours to the suit premises and they are in close proximity to the suit premises. In the reply affidavit filed by the 1st petitioner, she states that her house is situated to the west of the.suit premises with only a road of about 12 feet width in between. She complains that the original width of the said road was 18 feet'9 inches but it was narrowed down on account of the encroachments made by the 1st respondent. Some of the petitioners along with certain others also filed O.S. No. 2333 of 1985 before the Vth Assistant Judge, City Civil Court, Hyderabad questioning the constructions being made by the 1st respondent in the suit premises and the same is pending. The 1st petitioner and another also filed O.S. No. 979 of 1987 on the file of the Ilnd Assistant Judge, City Civil Court, Hyderabad for a declaration that the 1st respondent was not entitled to make constructions contrary to G.O. Rt. No. 1835 dated 29-10-1984 or permit No. 61/51 dated 28-11-1984 granted by the 2nd respondent and the same is also pending. The effect of the impugned orders in E.P. No. 3 of 1988 and E.A. No. 23 of 1990 is to regularise the constructions made by the 1st respondent which are being questioned by the petitioners In their suits. It is their case that the 1st respondent is relying on the impugned orders in the said suits. Some of the petitioners also filed I.A. No. 340 of 1985 to implead themselves as defendants in O.S. No. 1932 of 1985 and it is the case of the petitioners that the said suit was referred to Lok Adalat without notice to them even when the said I.A. was pending and that a settlement was arrived at behind their back. Therefore it cannot be said that they have no locus standi.
9. In K. R. Shenoy v. Udipi Municipality, the Supreme Court held as follows (at page 2181):--
"The appellant can challenge at the threshold when the Scheme which is framed for the benefit of the residents in that area is violated by the Municipality. The Municipality acts for the public benefit in enforcing the Scheme. Where the Municipality acts in excess of the powers conferred by the Act or abuses those powers then in those cases it is not exercising its jurisdiction irregularly or wrongly but it is usurping powers which it does not possess. The right to build on his own land is a right incidental to the ownership of that land. Within the Municipality the exercise of that right has been regulated in the interest of the community residing within the limits of the Municipal Committee. If under pretence of any authority which the law does give to the Municipality it goes beyond the line of its authority, and infringes or violates the rights of others, it becomes like all other individuals amenable to the jurisdiction of the Courts. If sanction is given to build by contravening a bye-law the jurisdiction of the Courts will be invoked on the ground that the approval by an authority of building plans which contravene the bye-laws made by that authority is illegal and inoperative."
In that case, the appellant contended that the Udipi Municipality had illegally sanctioned the plan for conversion of a Kalyana Mantap-cum-Lecture Hall into a cinema theatre and the Supreme Court held that the appellant as the resident in the area had the right to compel the Municipality to perform the duty imposed by the statute as the appellant resided in the area where the plan for the said conversion had been granted. The Supreme Court further held that an illegal construction of a cinema building materially affected the right to or enjoyment of the property by the persons residing in the residential area and that the Municipal Authorities owed a duty and obligation under the statute to see that the residential area was not spoilt by unauthorised construction. Dealing with the right of a neighbour to question in a suit the deviation from building regulations under the Act, a Division Bench of this Court in Kamalamma v. Subba Rao, 1973 (2) ALT 8 held that there was no provision in the Act which conferred a legal right upon a person dwelling in a neighbouring house to move a Civil Court for the relief of pulling down that portion of the building which had been constructed without regard to the specifications of the plan and which hampered free flow of light and air into his building and that there was no obligation, contractual or otherwise, on the part of the neighbour which requires that he should construct on his own land in accordance with the Municipal Rules and Regulations. This judgment of the Division Bench in Kamalamma's case was rendered before the decision of the Supreme Court in K. R. Shenoy's case referred,to above. Another Division Bench of this Court in Bhagwan Das v. Harish Chetwal (Judgment dated 25-2-1983 in C.R.P. No. 4600 of 1982) relying on K. R. Shenoy's case held as follows:--
"The pronouncement of the Supreme Court in K. R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a civil court not only to enforce the obligations and duties cast on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Art. 226 of the Constitution. The answer is quite apparent and it is in the affirmative."
This Division Bench also referred to the following passage in the judgment of P. A. Chowdary, J. in Narasimha Reddi v. Municipal Corporation, Hyderabad 1981 (1) ALT 46 : (1981 Cri LJ NOC 90 (AP)):
"The construction of these buildings constitutes, if not carried out according to the laws enacted and conceived in the interests of the general public, a serious threat to the neigh-bourer's quiet and calm and also a threat to public health. In other words, these transgressions of building laws involve an act of aggression by the petitioner on the rights of the neighbouring people.....
Building bye-laws in a Municipality belong to that category of inflixible and inexorable laws of house-building the observance of which cannot be waived normally either in prospect or retrospect by the municipal authorities. The prohibitions contained in these building bye-laws are prohibitions against a builder and for the benefit of the neighbourhood. They cannot therefore be lifted by the Municipal Corporation. If Courts hold that even in such cases the municipal authorities cannot demolish, it would amount to authorising the municipal authorities to sanction departures of law which have injurious effects on the health and well-being of all those that are living in the neighbourhood. In other words, such a course of action would involve sanctioning inflicting of injury on third parties which could never have been contemplated by the statute."
In Pratibha Co-operative Housing Society v. State of Maharashtra, the Supreme Court observed as follows (at page 1456):--
"We are also of the view that the tendency of raising unlawful constructions and unauthorised encroachments is increasing in the entire country and such activities are required to be dealt with by firm hands. Such unlawful constructions are against public interest and hazardous to the safety of occupiers and residents of multistoreyed buildings."
The question raised in this Civil Revision Petition is whether the impugned orders of the lower Court regularising the unauthorised constructions/deviations should be allowed to stand. The unauthorised constructions questioned by the petitioners are not trivial in nature but include the entire second and third floors. The petitioners also question the unauthorised conversion of the premises for commercial use. It cannot be disputed that the petitioners are neighbours to the suit premises. In the circumstances, I am not inclined to reject the revision petition on the ground that the petitioners have no standing.
10. The learned counsel for the petitioners submits that the compromise decree in O.S. No. 1932 of 1985 dated 24-2-1986 is not binding on the petitioners and that the 2nd respondent had no power to enter into compromise and grant exemption from zonal regulations. He submits that the Government of Andhra Pradesh was not a party to the said O.S. No. 1932 of 1985 and that therefore the 2nd respondent cannot enter into any compromise contrary to conditions subject to which the Government of Andhra Pradesh granted relaxations from the zonal regulations in its G.O. Rt. No. 1835 dated 29-10-1984. On that basis, he contends that the said compromise decree itself cannot be executed. He further submits that the earlier order in E.P. No. 57 of 1986 dated 5-10-1987 had become final and therefore the impugned orderdated 6-12-1989 in E.P. No. 3 of 1988 is barred by res judicata. He submits that the impugned order in E.P. No. 3 of 1988 proceeds on an erroneous basis that the earlier E.P. No. 57 of 1986 was dismissed "as the decree-holder did not pay the property tax up to date which is condition precedent for seeking implementation of the said decree." The learned counsel for the petitioners also submits that the impugned order is perverse and totally ignores and goes against the terms of the said decree which categorically provided that the 1 st respondent "shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad" which condition was violated by the 1st respondent by proceeding with the construction of the second floor. According to the learned counsel, there were clear findings in the order of the IInd Assistant Judge, City Civil Court in E.P. no. 57 of 1986 dated 5-10-1987 that the 1st respondent violated the conditions of the said decree dated 24-2-1986 by converting the premises into commerical premises and also by constructing the second floor without the permission of the 2nd respondent and relies on the following passage in paragraph 5 of the said order dated 5-10-1987 :--
"When the judgment-debtor (2nd respondent herein) made some bold allegations against the decree-holder (1st respondent herein) regarding the unauthorised construction of second floor and fixation of rolling shutters to the shops in the ground floor and converting the same into a commercial one, the decree-holder did not file any reply affidavit to disprove the allegations made against her for the alleged unauthorised constructions and she kept quiet and even she did not choose to let in any evidence showing that she did not violate the terms of the compromise decree. The contention of the learned counsel for the decree-holder is that as per the decree, the judgment-debtor is bound to comply with the decree of this Court and when the judgment-debtor failed to comply with the decree, the decree-holder is entitled for the regularisation of the construction and deviations cannot be accepted. The decree-holder herself averred in the plaint that she had no intention to construct second . floor without obtaining the necessary permission from the judgment-debtor after passing the decree, the decree-holder beat good bye to the terms of the decree and completed the second floor and thereby violated the terms of the decree. It is not the case of the decree-holder that she did not complete the second floor after passing of the decree and did not violate the terms of the decree as per the compromise effected in between them. The counsel for the decree-holder except contending that the judgment-debtor should regularise the matter by receiving the compounding fee, he did not whisper about the violation and unauthorised construction made by the decree-holder. In view of the unauthorised constructions and conversion of the use of domestic place as commercial one, the decree-holder is not entitled for the execution of the decree.
.....
It is not the case of the decree-holder that she had paid the property tax arrears up to date. Without paying the arrears of property tax she cannot ask the judgment-debtor to execute the decree. When the decree-holder herself violated the conditions of the decree, she cannot compel the judgment-debtor to comply the other conditions of the decree. Therefore, the decree-holder is not entitled to execute the decree through court on behalf of the judgment-debtor. Hence the petition is dismissed with costs."
The learned counsel for the petitioners also submits that the above passage clearly establishes that in the earlier order dated 5-10-1987 dismissing E.P. No. 57 of 1986 the IInd Assistant Judge, City Civil Court dismissed the said E.P. not only on the ground that the 1st respondent did not pay the arrears of property tax etc., but also on the ground that the 1st respondent violated the terms of the decree by converting the premises into commercial use and also by constructing the second floor. The learned counsel for the petitioners therefore submits that the said E.P. No. 3 of 1988 ought not to have been allowed and that the impugned order dated 6-12-1989 is made in clear abuse of the jurisdiction of the executing Court and should not be allowed to stand. According to the learned counsel, the Civil Court has no jurisdiction to compound and fix the compounding fees and to regularise the unauthorised constructions made by the 1st respondent in gross violation of G.O. Rt.
No. 1835 dated 29-10-1984 and also of the decree dated 24-2-1986 in O.S. No. 1932 of 1985.
11. The learned standing counsel for the 2nd respondent supports the learned counsel for the petitioners and submits that the executing court cannot interpret the decree dated 24-2-1988 in such a way as to make it go beyond the relief sought in the said O.S. No. 1932 of 1985 and that the "unauthorised construction/deviations" referred to in the said decree dated 24-2-1986 which are to be regularised by compounding the offence relate only to those unauthorised constructions/deviations existing on the date when the suit was filed and that the said interpretation followed from what was referred to as "regularisation of the suit constructions by levying compounding fee with requisite number of plans showing the unauthorised construction/deviation" and the further condition imposed in the said decree that the 1st respondent "shall not make any further constructions in anticipation of compounding without any specific permission of the Municipal Corporation of Hyderabad". He also refers to the following plea in paragraph 3 of the plaint in O.S. No. 1932 of 1985 :--
"The plaintiff further submits that, after laying of the roof of the first floor, some iron rods of the pillers were in excess to roof level and so the plaintiff in order to cover it closed the same with covering. The plaintiff further states that, there is neither any construction of the second floor nor has any intention to do so without obtaining due permission from the defendant corporation herein. The plaintiff has raised parapet wall in order to make safe the premises for inhabitation in as much as the plaintiffs family consists of small children and thus required full protection on the roof. In view of the above facts, there is no such construction which otherwise warrants obtaining any permission under the provisions of the H.M.C. Act, 1955".
He therefore submits that the impugned order dated 6-12-1989 in E.P. No.3 of 1988 goes far beyond the decree and is made in gross abuse of power and that the regularisation and approval of the building plans submitted by the 1st respondent allowing the E.A. No. 23 of 1990 is without jurisdiction.
12. The learned counsel for the 1st respondent submits that the impugned orders are within the jurisdiction of the IInd Assistant Judge, City Civil Court, Hyderabad and that mere errors cannot be corrected in exercise of the jurisdiction under Art. 227 and that the power of superintendence has to be exercised sparingly by the High Court and that the facts of the present case do not warrant exercise of the constitutional jurisdiction under Art. 227. He also submits that Art. 227 cannot be invoked when there is an alternative remedy by way of suit. He further submits that the impugned orders had become final and that the 2nd respondent had not questioned the same and that the present petition is liable to be dismissed for laches because the petitioners were aware of the impugned orders soon after the same were passed and they belatedly approached this Court after a long lapse of time. But on the question whether the impugned order dated 6-12-1989 in E.P. No. 3 of 1988 was not barred by res judicata in view of the earlier order in E.P. No. 57 of 1986 dated 5-10-1987, the learned counsel for the 1st respondent contends that the plea of res judicata cannot be pressed into service as the earlier E.P. No. 57 of 1986 was dismissed only because the 1st respondent did not pay the property tax etc., up to date and that the said pre-condition was satisfied when E.P. No. 3 of 1988 was presented.
13. I am satisfied that the impugned order dated 6-12-1989 of the IInd Assistant Judge, City Civil Court, Hyderabad is quite clearly barred by the principle of res judicata and is hit by S. 11 of the Civil Procedure Code read with Explanation VI thereto. As rightly pointed out by the learned counsel for the petitioners, the passage referred to earlier in para 5 of the order dated 5-10-1987 dismissing E.P. No. 57 of 1986 clearly establishes that the said E.P. filed earlier by the 1st respondent herein was dismissed not merely on the ground that she had not paid the property lax arrears uptodate, but also on the ground that she effected unauthorised constructions contrary to the decree dated 24-2-1986 and that she converted the suit premises into commercial use. The said order dated 5-10-1987 categorically held as follows:--
"It is not the case of the decree-holder that she did not complete the second floor after passing of the decree and did not violate the terms of the decree as per the compromise affected in between them. The counsel for the decree-holder except contending that the judgment-debtor should regularise the matter by receiving the compounding fee, he did not whisper about the violation and unauthorised construction made by the decree-holder. In view of the unauthorised constructions and conversion of the use of domestic place as commercial one, the decree-holder is not entitled for the execution of the decree."
It is also observed in the said order dated 5-10-1987 that:
"The decree-holder beat good bye to the terms of the decree and completed the second floor and thereby violated the terms of the decree."
It is also to be noticed that the decree dated 24-2-1986 was only for regularisation of "the suit constructions by levying compounding fee with requisite number of plans showing the unauthorised construction/deviations" and not any constructions made subsequent to the institution of the suit and the decree "without specific permission of the Municipal Corporation of Hyderabad". This follows from the clear direction in the decree itself that the plaintiff (the 1st respondent herein) shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad. It is also to be noticed that the 1st respondent categorically states in the plaint in O.S. No. 1932 of 1985 that "there is neither any construction of the second floor nor has any intention to do so without obtaining due permission from the defendant corporation herein". It is therefore obvious that the 1st respondent cannot have the second floor constructed by her regularised unless she establishes that the said construction of the second floor was with the specific permission of the 2nd respondent herein in terms of the said decree dated 24-2-1986. The question whether the 1st respondent constructed the second floor unauthorisedly and whether she could have the said unauthorised construction regularised was directly and substantially at issue in E.P. No. 57 of 1986 and the executing court dismissed the said E.P. after it found that the 1st respondent completed the second floor and thereby violated the terms of the decree and that in view of the unauthorised constructions and conversion of the use of the suit premises the 1st respondent was not entitled for the execution of the decree. The IInd Assistant Judge, City Civil Court blatantly closed his eyes to this part of the order dated 5-10-1987 dismissing E.P. No. 57 of 1986 and without any justification and indeed without any discussion whatsoever, held that the contention of the respondent that the said order operated as res judicata could not be accepted.
14. It is not as if the 1st respondent came forward with a new case in E.P. No. 3 of 1988. The basis for the said E.P. and the prayer therein are stated as follows in the said petition itself filed under Order 21 Rule 34 and Rule 11(2) read with S. 151 of the Civil Procedure Code:
"It is submitted as per the decree, the decree-holder have submitted plans, one on tracing cloth and five blue prints along with the certified copy of the decree, photostat copy of the up to date Municipal tax receipt requiring the J Dr. for regularisation of the construction shown in the plan in terms of the decree on 23-4-1986. The office copy of the letter duly acknowledged by J Dr. and two copies of plans are filed herewith.
It is submitted that when the D Hr did not hear anything from the J Dr. regarding payment of the compounding on 19-9-1986 against reminder has been given to the J Dr. through the advocate. The office copy of the reminder duly acknowledged by the J Dr. is filed herewith.
It is subnmitted as per the terms of the decree the decree holder is entitled for the regularisation of the construction and deviation as per the plan submitted by her before the J Dr. and since the J Dr. failed to endorse on the plans regularising the constructions. The E.P. is filed.
Hence it is prayed that this hon'ble court be pleased to execute the decree by levying the compounding fee and by endorsing on the plans on behalf of the J Dr about the regulari-sation of the construction and deviation shown in plan subject to the terms of the decree return the plan to the decree holder and pass any other order or orders as this hon'ble court may deem fit and proper in the circumstances of the case."
What is stated on the face of it appears to be innocuously simple. But the plan which was filed along with the said petition showing the deviations and unauthorised constructions to be regularised included the second floor plan. The plan attached to the original order of the IInd Assistant Judge in E.P. No. 3 of 1988 dated 6-12-1989 has an endorsement thereon with his signature as follows:--
"The deviations marked in red colour are hereby regularised as per orders passed in E.P. 3/88 in O.S. 1932/85 dt. 6-12-89 and as per orders dt, 7-3-90 passed in E.A. 23/90 in E.P. 3/88 in pursuance of the decree dt. 24-2-86 passed on the basis of settlement before the Lok adalat in L.A.542/86 dt. 25-1-86."
The entire second floor plan including the halls, rooms, toilets, balcony and stair case shown therein are marked in red. The question that immediately arises is whether this was the plan which was submitted by the 1st respondent to the 2nd respondent for regula-risation of the constructions shown in the plan in terms of the decree on 23-4-1986, as claimed by her in E.P. No. 3 of 1988. The IInd Assistant Judge, City Civil Court seems to have proceeded on the basis that this was the plan submitted to the 2nd respondent on 23-4-1986 as claimed by the 1st respondent in her petition. If that is so, the second floor must have been constructed by the 1st respondent by 23-4-1986 i.e., even by the time earlier E.P. No. 57 of 1986 was filed. The learned counsel for the 1st respondent tried to contend that the second floor was not constructed even by the time the said E.P. No. 57 of 1986 was dismissed on 5-10-1987 and in support of the same, he refers to the counter affidavit of the 1st respondent filed in the present Civil Revision Petition wherein she stated that she applied for the construction of the second floor only on 5-4-1988 and also informed the 2nd respondent on 2-5-1988 that in the event no communication was received by her she would commence the construction of the second floor and that she subsequently wrote to the 2nd respondent that she commenced the construction as provided under S. 437 of the Act. On the basis of the said averment of the 1 st respondent in her counter affidavit, the learned counsel submits that the 1st respondent did not construct any second floor before 1988 and that therefore the observations of the IInd Assistant Judge, City Civil Court in his order dated 5-10-1987 while dismissing E.P. No. 57 of 1986 that the 1st respondent in fact constructed the second floor by then and thus violated the condition in the decree dated 24-2-1986, is without any basis and factually incorrect. I am afraid this contention of the learned counsel for the 1 st respondent cannot stand scrutiny for more than one reason. The first reason is that merely because the 1st respondent applied for the construction of the second floor only on 5-4-1988, it does not follow that she did not already complete the construction of the second floor unauthofi-sedly. The second reason is that in her petition in E.P. No. 3 of 1988 the 2nd respondent did not state that she did not construct the second floor by 1-2-1988 when she filed the said E.P. and there was no express contention raised in the said petition that the finding recorded in the order dated 5-10-1987 dismissing E.P. No. 57 of 1986 was factually without any basis she could have easily got the same verified at that time by having a commissioner appointed for spot inspection and had the truth out. The third reason is that the record of the Ilnd Assistant Judge in E.P. No. 3 of 1988 has only one plan referred to earlier, wherein the full second floor was delineated as a deviation and unauthorised construction to be regularised, and which was in fact regularised by the endorsement made by the IInd Assistant Judge as already stated above; which means that that was the only plan filed along with F.P. No. 3 of 1988. If really there was no unauthorised construction of the second floor by the time E.P. No. 3 of 1988 was filed, it takes lot of explanation for the 1st respondent to explain how such a plan found place in the record of the said E.P. The fourth reason is that the decree dated 24-2-1986 as per the settlement arrived at only provided for the 1st respondent to apply to the 2nd respondent for regularisation of "the suit constructions" by levying compounding fee with, requisite number of plans showing the unauthorised construction/deviations. Therefore the regulations contemplated were only in respect of the unauthorised constructions covered by the notices issued by the 2nd respondent which were questioned in the suit O.S. No. 56 of 198,5 and not any constructions made subsequently. It is not the case of the 1st respondent as per her plaint filed in the said O.S. No. 1932 of 1985 that she constructed halls, rooms, toilets and balcony in the second floor by the time she filed the said suit. As per the said plaint, she only constructed certain columns and a parapet wall. Therefore she cannot have all the other constructions in the second floor like halls, rooms, toilets and balconies etc., regularised pursuant to the said decree dated 24-2-1986 unless she claims and satisfies that the said further constructions were made with the specific permission of the 2nd respondent. The record in E.P. No. 3 of 1988 does not disclose that the 1st respondent put forward any such claim or any material to establish that the said additional constructions were with the specific permission of the 2nd respondent. It is also to be noticed in this connection that in the counter affidavit filed on behalf of the 2nd respondent it is stated that though the 1st respondent applied for permission for the construction of the second floor on 5-4-1988 the 2nd respondent refused to give such permission and communicated the same to the 1st respondent by its letter No. 142/1/2/21/1988 dated 12-4-1988 which was received by her husband on 28-4-1988 and that the 2nd respondent directed the 1st respondent by noticedated 8-7-1988 to remove the unauthorised constructions immediately and also issued notices under S.452 dated 11-7-1988 and under S.636 dated 14-7-1988 in respect of which the 1st respondent filed suits O.S. Nos. 2685 and 2758 of 1988 on the file of the IInd Assistant Judge, City Civil Court, Hyderabad. From this it is very clear that the further constructions in the second floor were without any specific permission of the 2nd respondent. Another aspect to be noticed is that the relaxation granted by the Government of Andhra Pradesh in G.O. Rt. No. 1835 dated 29-10-1984 was subject to the condition that the 1st respondent should not propose further vertical expansion at any: time in future and that she should not project balconies towards western and northern sides and that the 2nd respondent should take necessary action accordingly and issue a building permit to the 1st respondent. The Government of Andhra Pradesh is not a party to the said 6.S. No. 1932 of 1985. In the additional counter affidavit filed on behalf of the 2nd respondent in the said E.P. No. 3 of 1988 it was also contended that the 2nd respondent had no authority to compound the construction of the full second floor by the 1st respondent and to regularise the said construction and that the authority to do the same, if at all, was the Government of Andhra Pradesh. It was precisely because of the unauthorised, construction of the second floor and the conversion of the use| of domestic place as commercial one by fixing the rolling shutters to the shops in the ground floor that the IInd Assistant Judge, City Civil Court earlier dismissed E.P. No. 57 of 1986 on 5-10-1987.
15. Even apart from the bar of res judicata, the impugned order dated 6-12-1989, in E.P. No. 3 of 1988 has no legs to stand. Even of the matter had to be looked at a fresh, it is inconceivable how the 1st respondent can get the unauthorised construction of the second floor regularised under the said decree dated 24-2-1986. The decree only provided for regularisation of the suit constructions, which means constructions mentioned in the plaint as deviating from the permit No. 61/51 dated 28-11-1984 granted by the 2nd respondent pursuant to the said G.O. Rt. No. 1835 and not any and every unauthorised construction made subsequently unless there was specific permission of the Municipal Corporation of Hyderabad. The 1st respondent did not take any plea in E.P. No. 3 of 1988 that it constructed the second floor after obtaining the specific permission of the 2nd respondent.
The said decree dated 24-2-1986 did not authorise the approval of any and every plan submitted by the 1st respondent but only the plan of the suit constructions showing the unauthorised constructions/deviations etc., thereon for the purpose of regularisation of the said constructions. The impugned order dated 6-12-1989 in E.P. No. 3 of 1988 isliable toibe set aside also because it proceeded on a gross misreading of the said decree dated 24- 2-1986 in O.S. No. 1932 of 1985 apart from being hit by the principle of res judicata and therefore cannot be allowed to stand. !
16. I am satisfied that it can be set aside in exercise of the jurisdiction of this Court under Art. 227 of the Constitution of India. The learned counsel for the 1st respondent relied on a decision of five Judges Bench of the Supreme Court in Waryam Singh v. Amar-nath, wherein it was observed that (at page 217):
"The power of superintendence conferred by Art. 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways, Ltd. v. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors."
What Harries, C.J., said speaking for the Special Bench in Dalmia Jain Airways, Ltd. case, (SB) was that "the High Court's power of superintendence is a power tb keep subordinate Courts within the bounds of their authority, to see that they do What their duty requires and that they do it in a legal manner" and he was repeating what Rankin, C.J., said in Manmathanath v. Emperor, AIR 1933 Cal 132 : (34 Cri LJ 299) with reference to S. 107 of the Government of India Act, 1915 which conferred similar powers of superintendence on the High Courts as Art. 227. He also relied on the judgment of the Supreme Court in Satyanarayan v. Mallikarjun, , wherein a three Judges Bench of the Supreme Court observed as follows (at page 142):
"Article 227 corresponds to S. 107 of the Government of India Act, 1915. The scope of that section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of S. 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under S. 115 of the Code of Civil Procedure or under Art. 227."
In Mohd. Yunus v. Mohd. Mustaqim, a two Judges Bench of the Supreme Court observed that "a mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Art. 227" and that the said jurisdiction is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority" and not to correct an. error apparent on the face of the record, much less an error of law. But subsequently another two Judges Bench of the Supreme Court also held in State of U.P. v. District Judge, Unnao as follows (at page 1402):--
"The present appellant approached the High Court in Writ Petition No. 610 of 1974 under Art. 227 of the Constitution. The High Court declined to interfere with the order of the learned District Judge even though it was satisfied that the appellant had established that it was prevented by a sufficient cause from preferring the appeal in time. This is frankly un-understandable and exhibits a rigid and inflexible view of jurisdiction under Art, 227 ultimately leading to injustice. This is what the High Court says:
"May be, if I had considered the matter as the Court of first instance I might have taken a different view, but unless it can be held that the view taken by the learned District Judge was not a plausible view that cannot be reversed in exercise of the powers under Art. 226 of the Constitution."
Article 227 or Art. 226 was devised to advance justice and not to thwart it. Therefore, accepting the finding of the High Court that sitting as trial Court, it was satisfied that the appellant had made out sufficient cause for condoning the delay, we must interfere in this appeal so as to advance justice."
Relying on Waryam Singh's case, a Division Bench of this Court held in S. Sivaram Babu v. P. Sunjan Raju, 1992 (1) APLJ 154 that "under Art. 227 of the Constitution of India, this Court can set aside the erroneous orders passed by the subordinate Courts", and set aside the order of the lower Court returning the plaint with a direction to deposit the balance sale consideration for the purpose of entertaining the suit for specific performance of the agreement of sale. In Nagamma v. S. P. Mahipal Reddy, 1990 (2) APLJ 198 a learned single Judge of this Court held that under Art. 227 "this Court has undoubted jurisdiction to rectify manifest errors leading to grave injustice". That was also a case of execution of a decree. The learned single Judge held that the respondent in that case misled the executing Court by moulding the prayer portion in the petition by seeking delivery of possession of the mortgaged property which he never sought for and to which he was not at all entitled, and that the lower Court committed a grave error in not going through the preliminary decree and that it simply granted the prayer without having regard to the record and that even if the petitioner, out of ignorance or lack of proper legal advice failed to appeal against the final decree, which was manifestly erroneous and without jurisdiction, this Court should not perpetuate the injustice apparent on the face of the record caused to the petitioner and permit the respondent to enjoy the fruits of the same. The two decisions of this Court referred to above are obviously rendered on the basis that the jurisdiction under Art. 227 can be exercised for advancing justice by setting aside manifestly erroneous orders of the lower Courts -- such orders are treated as without jurisdiction. In Chandravarkar Sita Ratna Rao v. Ashalata, a two Judges Bench of the Supreme Court after considerable discussion held as follows (at page 124):
"It is true that in exercise of jurisdiction under Art. 227 of the Constitution the High Court could go into the question of facts or look into the evidence of justice so requires it. if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Arts. 226 and 227 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence, The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest injustice See Trimbak Gangadhar Telang v. Ram Chandra Ganesh Bhide, . Except to the limited extent indicated above, the High Court has no jurisdiction."
In that case, the Supreme Court referred to the decision of the Constitution Bench in Waryam Singh' case and also to the decision of another Constitution Bench in Nagendra Nath Bora v. Commr. of Hills Division, wherein it was held (at page 413):
"Under Art. 227 of the Constitution the power of interference is limited to seeing that the Tribunal functions within the limits of its authority."
In Trimbak Gangadhar Telang's case a two Judges Bench of the Supreme Court held as follows (at page 1225):
"It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure of law has crept in or where the order passed results in manifest injustice, that a Court can justifiably intervene under Art. 227 of the Constitution."
17. The facts in the present case are some what akin to those in Nagamma's case, 1990 (2) APU 198, referred to above. The 1st respondent herein sought more than what the decree dated 24-2-1986 in O.S. No. 1932 of 1985 gave her suppressing the fact that she proceeded with the construction of the second floor without the specific permission of the 2nd respondent contrary to the express condition in the decree that she "shall not make any further construction in anticipation of compounding without specific permission of the Municipal Corporation of Hyderabad". The 1st respondent also suppressed the fact that the earlier E.P. No. 57 of 1986 was dismissed also on the ground that she proceeded with the construction of the second floor contrary to the condition in the said decree. The IInd Assistant Judge, City Civil Court (executing Court) failed to look into his earlier order dated 5-10-1987 dismissing E.P. No. 57 of 1986 and assumed that the said E.P. was dismissed as the decree-holder did not pay the property tax up to date which was condition precedent for seeking implementation of the said decree. He also failed to perceive that the decree dated 24-2-1986 provided only for regularisation of the suit constructions and that too only if the 1st respondent complied with the conditions of the decree, and not other unauthorised constructions, made by her subsequent to the filing of the suit. Needless to say, if the subsequent constructions were made with the specific permission of the 2nd respondent, no further regutarisation by the 2nd respondent is necessary. But the contention of the 2nd respondent has always been that the 1st respondent proceeded with the construction of the second floor unauthorisedly contrary to the condition in the decree itself. Earlier, that was found as a fact and on that basis E.P. No. 57 of 1986 was dismissed; and on that basis the 2nd respondent contended that E.P. No. 3 of 1988 was barred by res judicata. The IInd Assistant Judge, City Civil Court brushed aside this contention in a flippant manner. The specific contentions of the 2nd respondent in the additional counter filed on its behalf in E.P. No. 3 of 1988 that "in view of the restrictions imposed while relaxing the Zoning Regulations by Government and the compromise decree in Lok Adalat the decree-holder cannot proceed with further (construction) of the second floor and pray for its compounding through this present E.P. which is not the scope at all" and "that the authority to compound the irregularities is the Government but not the M.C.H." referred to in paragraph 4 of the impugned order dated 6-12-1989 in E.P. No. 3 of 1988 were not considered by the IInd Assistant Judge. On the facts and circumstances of this case, I am satified that the impugned order in E.P. No. 3 of 1988 dated 6-12-1989 is arbitraory and is made in gross abuse of jurisdiction of the executing Court and therefore has to be set aside. The consequential order in E. A. No. 23 of 1990 dated 7-3-1990 also has to go.
18. The learned counsel for the 1st respondent contends that the petitioners have an alternative remedy of filing a suit. As already stated above, already two suits filed by some of the petitioners and others and at least two suits filed by the 1st respondent are pending for a number of years which establish that the civil litigation is not an equally efficacious alternative remedy available to the petitioners. In fact, every time the 2nd respondent gave a notice questioning the unauthorised constructions being made by the 1st respondent, the 1st respondent approached the Civil Court and obtained interim directions. It is inexplicable why the 2nd respondent has not questioned the impugned orders even though it is supporting the petitioners in this Civil Revision Petition and also has been issuing notices for demolition to the 1st respondent. There is also ample authority for the view that alternative remedy, unless it is equally efficacious, is no bar for the exercise of the jurisdiction under Article 227 of the Constitution. This Court can also exercise the jurisdiction suo motu. The argument of the learned counsel for the 1 st respondent based on laches also does not appeal to me. Merely because the petitioners filed LA, No. 190 of 1988 on 7-3-1988 for disposing of E.P. No. 3 of 1988 along with O.S. No. 979 of 1987, it does not follow that the petitioners were aware that the said E.P. was allowed on 6-12-1989. It is their case that they became aware, of the said order in E.P. No. 3 of 1988 when the 1st respondent filed an additional affidavit on 2-5-1991 in I.A. No.9l of 1991 in O.S. No.23.13 of 1985 slating that all the constructions made by her including those on the second floor were regularised by the said order dated 6-12-1989 in E.P. No. 3 of 1988. There is no reason to disbelieve the petitioners. The present Civil Revision Petition was filed on 24-6-1991.
19. In the circumstances, the Civil Revision Petition is allowed with costs against the 1st respondent. Advocate's fee Rs. 350/-.
20. Petition allowed.